Hester v. Bandy, 90-CA-0682
| Decision Date | 02 December 1993 |
| Docket Number | No. 90-CA-0682,90-CA-0682 |
| Citation | 627 So.2d 833 |
| Parties | 24 UCC Rep.Serv.2d 1344 Jimmy HESTER and Pam Hester v. J.E. BANDY, Individually, J.E. Bandy d/b/a Coast Auto Sales, Bill Evans, Individually, and Bill Evans d/b/a Southeastern Recovery. |
| Court | Mississippi Supreme Court |
Clyde H. Gunn, III, Corban & Gunn, Biloxi, for appellant.
David B. Strain, Coral Gables, FL, for appellees.
Before HAWKINS, C.J., and PITTMAN and BANKS, JJ.
Jimmy Ray and Pam Hester have appealed from a j.n.o.v. entered in the circuit court of the first judicial district of Harrison County in favor of J.E. Bandy, doing business as Coast Auto Sales, following a jury verdict in favor of the Hesters. Because the court erred in entering a directed verdict in Bandy's favor because the tortfeasor Bill Evans was an independent contractor of Bandy's, we reverse.
Hester was employed as a sheetrock hanger in Harrison County. He, his wife Pam, and five children lived in a mobile home on Marie Road. Pam's mother died from injuries sustained in an automobile accident and Pam received a settlement of approximately $6,000.00. On or about August 7, 1987, the Hesters purchased a 1982 Ford van from Bandy, making a $5,250.00 down payment, with the remaining $2,850.00 to be paid off in monthly installments of $100.00, beginning in September 7, 1987.
While there was no formal security agreement executed, the purchase order did contain the following paragraph:
It is understood and agreed that the Title of Ownership of car as above described does not pass to me until the final cash payment is made. I certify that the car I am trading is free from all encumbrances whatsoever.
Also, the Certificate of Title issued by the State of Mississippi lists Coast Auto Sales as the first/primary lienholder.
The monthly $100.00 payments were made from September, 1987, until August, 1988, by mailing checks or money orders to Coast Auto Sales. The August payment was not made and Karen Bandy, Bandy's daughter-in-law, on September 14 called Pam about the delinquency, and told her the September payment was due also. Karen told Pam that if payment was not made by Friday, September 16, legal action would be taken. At the close of the business day on Friday, September 16, Bandy called Evans, who was in the repossession business, and instructed Evans to repossess the Hesters' van. He was to be paid $150.00 upon completion. At this time, the outstanding balance on the van was approximately $1,700.00.
Evans first looked for the van in the parking lot where Pam was employed, but it was not there. At approximately 3:00 a.m. on Tuesday, September 20, Evans, along with his employee, Bill Christner, went to the Hesters' residence and saw the Hesters' Camaro parked directly behind the van. Evans moved the car in order to get to the van.
Evans hitched the van to the wrecker and was starting to remove it when Jimmy Hester awakened and went outside to see what was going on. He observed the men attaching the van to the truck by way of a "quick snatch harness," and he began yelling at the two men. In his pursuit of the truck and van as they left, Hester fell into a ditch and was injured. He was taken to Gulfport Memorial Hospital. His injuries included a torn rotator cuff to his right shoulder and a scratched and skinned left knee.
On September 20, 1988, Karen Bandy wrote Pam that the vehicle had been repossessed "due to your payment history and for late payments that have not been received," and that they had no alternative but to pick it up. The letter gave her ten days to provide them with an adequate insurance policy, with Coast Auto Sales as loss payee, make a $300 payment for August, September and October, and $150 reimbursement for repossessing the vehicle.
The Hesters' attorney, Clyde Gunn, accompanied them to Coast Auto Sales in Biloxi in order to recover their van. Gunn paid two hundred dollars and the van was returned to them. The record does not show how the $200 payment was applied.
The Hesters filed a complaint for wrongful repossession against Bandy, doing business as Coast Auto Sales, and Bill Evans, doing business as Southeastern Recovery. They alleged Evans was the agent of Bandy, and that on September 20, 1988, Evans had wrongfully trespassed on the Hesters' property, damaged the car, assaulted Jimmy Hester and caused him personal injuries in repossessing the car, all in violation of Miss.Code Ann. Sec. 75-9-503 (Supp.1992).
Section 75-9-503 Miss.Code Ann. provides in pertinent part:
Unless otherwise agreed a secured party has on default the right to take possession of the collateral. In taking possession a secured party may proceed without judicial process if this can be done without breach of the peace or may proceed by action.
The complaint did not charge that the Hesters were not in default, or that Bandy did not have the contractual right to repossess the vehicle in event of default. The entire complaint was predicated upon a wrongful seizure by unnecessary force and a breach of the peace, in violation of Miss.Code Ann. Sec. 75-9-503.
On December 14, 1988, Evans filed an answer of general denial, and in his sixth defense specifically pleaded that Evans was not his agent, but an independent contractor.
On April 26, 1989, Bandy filed a motion for summary judgment, alleging inter alia that Evans was an independent contractor. Evans had been in the repossession business of motor vehicles for six years. Bandy had nothing whatever to do with Evans' repossession except to give him what information he had as to the Hesters' place of residence and employment. Evans had never performed any repossession service for Bandy before this occasion. The two businesses were totally distinct and separate. Bandy thought he was employing a reliable, knowledgeable person to perform this service for him, and contracted with him simply to get the car. He exercised no supervision or control as to the time or place for performing this service. Evans' contracted price for the service was $150.00.
Plaintiffs responded that there was a question of fact as to whether Evans was an independent contractor or agent of Bandy, and also some question (although this was not seriously argued) whether Evans had a security interest under the contract of sale. The sole issue presented for consideration by the circuit judge in the motion and argument thereon was whether Evans in fact was an independent contractor and, therefore, Bandy was not liable, with Bandy claiming he was, and the Hesters claiming he was an employee. 1
The court overruled the motion for summary judgment.
The instructions submitted by the parties prior to trial only embraced the issues of whether there had been a breach of the peace, or use of unnecessary force, in repossessing the vehicle, and whether or not Evans was an agent of Bandy, as opposed to merely being an independent contractor.
Based on testimony given by Pam, however, the circuit judge at the conclusion of the trial directed that a new and separate issue be submitted to the jury. The record reflects that on Wednesday, September 14, Karen Bandy called Pam Hester about the delinquency, and told her if payment was not made by Friday, September 16, legal action would be taken. Pam testified as follows:
Q. Now, what was said during the conversation in September about the August payment?
A. She told me that some arrangements had to be made by Friday or legal action would be taken and I told her that I would send her a payment in the mail as always on Friday. There would be no need to take legal action.
Q. All right. Did she promise you that she would not take legal action if she did not get a payment by Friday?
A. She didn't say she had to have a payment by Friday. She said something had to be done by Friday.
Q. Ma'am, I--
A. And I told her I would send the payment in Friday and no, sir, she did not say that there would not be legal action taken.
Q. She did not make you any promise that she was not going to take whatever actions that J.E. Bandy legally had, whatever the laws gave him as a right, she never promised you that she was not going to take those, or he was not.
A. No, sir.
Q. Ma'am, why didn't you just hand deliver--you knew the payment was late; you knew the mail was going to take several days; you knew that they were not going to get it on Friday if you put it in the mail on Friday. I just want to hear your explanation, and you may have one, as to why you just didn't take it to them.
A. She said something had to be done by Friday and I did something by Friday. I mailed her the payment as I had done eleven times previous to that. I have never stepped foot back on Mr. Bandy's property since the day we drove off with that van, August the 7th, 1987. I mailed every payment in and why should that one have been any different?
Q. Well, she was telling you that you were now later on that payment than any other payment; is that right? Because that was an August payment.
A. It was 16 days late.
Q. Well, I won't get into an argument that over what you think the contract meant but that was the latest even in your mind the payment had ever been; right?
A. Right. She didn't specify, she didn't say don't mail it, bring it in. She said something had to be done and it was.
(R.209)
On cross-examination Pam admitted that in her deposition she had said that Karen Bandy had made her no promise that if she did something by Friday nothing would be done. (R.328) Pam testified she placed a money order in the mail on Friday, but, according to Bandy, it was never received.
There was no attempt to amend the complaint to embrace any issue that might have been raised by this testimony. 2
At the close of the trial, the circuit judge reversed his summary judgment ruling, and ruled as a matter of law that Evans was an independent contractor of Bandy's, and, therefore, Bandy was not liable for his acts in repossessing the...
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